Restatement (Third) of Property: Servitudes
§ 1.1 Terminology — Servitude Defined
Summary
Section 1.1 of the Restatement (Third) of Property: Servitudes defines a servitude as a legal device that creates a right or obligation that runs with land or an interest in land. The term “servitude” is used as a unifying concept to encompass easements, profits, and covenants—categories that were historically treated as distinct doctrines with different rules.
The Restatement’s unifying approach simplifies property law by recognizing that these devices all serve the same fundamental purpose: creating interests that bind successive owners of land. By grouping them under a single umbrella term, the Restatement seeks to eliminate the technical distinctions and formalistic traps that plagued the older law of real covenants and equitable servitudes.
This section is foundational because it establishes the framework for the entire Restatement of Servitudes. Understanding that easements, profits, and covenants are all species of servitude allows students and practitioners to apply a unified analytical approach rather than navigating the historically distinct and often conflicting doctrines.
Key Elements
- 1Servitude is a right or obligation that runs with land
- 2Unifying concept encompassing easements, profits, and covenants
- 3Eliminates formalistic distinctions of older common law
- 4Covers both affirmative and negative servitudes
- 5Applicable to both appurtenant and in-gross interests
Practical Application
Section 1.1 provides the analytical starting point for any dispute involving property interests that bind successors. Whether the case involves a driveway easement, a homeowners association covenant, or a mineral rights profit, the unified servitude framework applies. Courts in jurisdictions that have adopted the Third Restatement use this framework to avoid the technical pitfalls of distinguishing between real covenants and equitable servitudes.
Exam Relevance
Property exams often test whether a particular interest runs with the land. The Restatement’s unified approach simplifies this analysis: instead of separately analyzing whether an interest meets the requirements for a real covenant at law or an equitable servitude in equity, students can apply the single servitude framework. However, many professors still teach the traditional distinctions, so be prepared to address both approaches.